The latest action brought by the DOJ against AT&T seeking to block its deal with T-Mobile is drawing a lot of commentary about the amount of money AT&T would lose if the deal is blocked. What goes unmentioned are the millions of dollars that have likely already been spent by AT&T and T-Mobile in producing electronically stored information (ESI) to the DOJ in connection with its antitrust review, and how companies can get some control over those costs.
Picture an enormously broad document request:
- It touches virtually every aspect of your deal;
- It seeks detailed financial information about your sales, margins, etc.;
- It seek other information about your customers, including contracts;
- It involves dozens of custodians, including all of your executive team; and
- And it has to be responded to almost immediately.
That is what happens when the DOJ’s Antitrust Division investigates a deal and issues what is called a Second Request. Responding to the Second Request can cost the parties millions, particularly when dealing with vast quantities of ESI. But proactive steps can be taken to make the process more efficient, control costs, and keep the focus where it should be – on whether the transaction really has anti-competitive effects.
So, how do you prepare? If your antitrust counsel thinks there is any possibility of a Second Request, immediately engaging counsel with deep experience with e-discovery and the Second Request process is key. Experienced e-discovery counsel will know:
- how to determine what systems are and are not easily produced to the DOJ;
- what vendors are capable of dealing with expedited collection and production;
- the DOJ’s production requirements, which are quite specific; and
- what kinds of data the DOJ and its economists will be looking for.
Preparing will cost some money up front. But you will be well along the road if the Second Request comes in, and as a result be in a better negotiating position with the DOJ as well as with vendors. And time is money – the longer it takes to respond to the Second Request, the longer your deal is delayed.
So, like almost everything else having to do with the production of ESI, preparation is critical. Waiting will not make it easier – it will make it harder and more expensive.